Citation Nr: 0901783
Decision Date: 01/15/09 Archive Date: 01/22/09
DOCKET NO. 04-21 222 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for depression.
2. Entitlement to service connection for bilateral hearing
loss.
3. Entitlement to service connection for a rash of the groin
area.
REPRESENTATION
Appellant represented by: Virginia A. Girard-Brady,
Attorney
WITNESSES AT HEARING ON APPEAL
Appellant and Spouse
ATTORNEY FOR THE BOARD
A. Hinton, Counsel
INTRODUCTION
The veteran had active duty from January 1964 to January
1966.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2004 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA), which in pertinent part, denied service connection for
the claimed disabilities on appeal, and for memory loss. In
March 2007, the veteran and his spouse testified before the
undersigned at a Travel Board hearing held at the RO.
In an August 2007 decision, the Board denied service
connection for depression, hearing loss, rash of the groin
area, and for memory loss. The veteran subsequently appealed
that Board decision to the United States Court of Appeals for
Veterans Claims (Court).
In August 2008, while this case was pending at the Court,
VA's Office of General Counsel and appellant's representative
(the parties) filed a Joint Motion requesting that the Court:
vacate the Board's August 2007 decision to the extent of the
Board's denial of service connection for depression, hearing
loss, and rash of the groin area; leaving intact the denial
regarding the claimed memory loss. In a September 2008
Order, the Court granted the Joint Motion, remanding the case
to the Board for compliance with instructions in the Joint
Motion.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
In the Joint Motion granted by the Court, the parties agreed
that for the reasons below, further development by VA was
required regarding the three claims on appeal.
The parties to the Joint Motion agreed that the Board: (1)
failed to consider or address the credibility of lay
statements and testimony of the appellant and his spouse in
support of his claim regarding symptomatology in service and
since service; and (2) failed to discuss the applicability of
38 U.S.C.A. § 1154(b)-given that the appellant had been
engaged in combat with the enemy-with respect to the
sufficiency of lay statements to establish the in-service
incurrence of an injury or disease.
The parties also agreed that the Board: (1) failed to discuss
whether the appellant was afforded adequate examinations; and
(2) relied on VA examinations in 2003, which the parties
found were inadequate. In particular, the parties agreed
that the examinations were inadequate because the examiners'
review of treatments and symptoms were inadequate. The
parties agreed that the examiners' findings ignored the
appellant's statements of record regarding symptoms, instead,
focusing mainly on the lack of evidence showing treatment (in
the case of the audiology examination), or failed to address
etiology (in the case of the depression and rash
examinations).
In this regard, the parties agreed that the Board may not
adopt a doctor's opinion as the basis for its denial if that
opinion failed to discuss all the positive evidence in
support of the claim. Further, they agreed that a veteran's
competent lay evidence regarding matters which are within his
personal knowledge and experience, may not be rejected solely
based on the fact that the record fails to contain
corroborating medical evidence. In short, the parties agreed
that a medical opinion that fails to consider competent lay
evidence that is favorable to the claim is inadequate.
For all of these reasons, a remand is necessary to meet the
requirements of the Joint Remand, to include examinations
consistent with those requirements. Additionally, new VA and
private medical evidence has been associated with the claims
file since the April 2004 statement of the case, which is the
last time the RO reviewed evidence and considered the issues
on appeal. The RO has not considered the evidence submitted
since the statement of the case, and the veteran has not
submitted a waiver of RO review of this additional evidence.
Therefore, the Board may not consider this additional
evidence in the first instance and the case must be remanded
for this reason as well.
After affording the veteran pertinent examinations for the
claimed depression, bilateral hearing loss, or a rash of the
groin area, the RO must reconsider the associated claims on
appeal in compliance with the instructions in the Joint
Motion adopted by the Court.
Accordingly, the case is REMANDED for the following action:
1. By appropriate means, obtain any VA or
private records of pertinent medical
treatment not yet on file referable to
depression, bilateral hearing loss, or a
rash of the groin area.
2. Schedule the veteran for VA
examinations by appropriate specialists-
as shown respectively in parentheses
below-for the purpose of determining the
nature and likely etiology of any claimed
disorders identified as (a) depression
(psychiatric specialist medical doctor),
(b) bilateral hearing loss (state-licensed
audiologist and otolaryngologist), and (c)
a rash of the groin area (dermatologist or
equivalent specialist medical doctor).
The general instructions for each examiner
must include the following.
The RO should make the claims file
available to each of the respective
examiners, who should each review the
entire claims folder in conjunction with
the examinations. The examiners should
indicate this fact in the respective
examination reports.
In relation to each of the three claimed
disorders being examined, each respective
examiner must ask the veteran to provide a
detailed oral statement describing the
complaints/symptoms of the claimed
condition during service and after
service, to include a time-line starting
within one year after service and
thereafter to the present complaints.
On review of the medical evidence of
record, in their respective examination
reports the examiners must provide
relevant information regarding the
following areas:
(a) a detailed review of the veteran's
service treatment records;
(b) a detailed review of the veteran's
report of his symptoms during service,
as well as his symptoms during service
and after service, to include a time-
line starting within one year after
service and thereafter to the present
complaints;
(c) relevant clinical history of
findings, diagnoses, opinions,
etcetera, as shown in the post-service
medical evidence of record.
Each respective examiner should perform
all diagnostic studies/tests deemed
appropriate, and set forth all examination
findings in detail in the examination
report. In addressing the opinions
requested below, the examiners must
discuss and consider any competent lay
evidence that may be favorable to the
veteran's claim.
In addition to the general instructions
above, each examiner should, respectively,
carry out examination consistent with the
following specific instructions:
(a) Depression (Psychiatric) Examination.
After reviewing the available medical
records and examining the appellant, the
examiner should render a diagnosis for any
psychiatric disorder found. For each
chronic psychiatric disability diagnosed,
the examiner should provide a medical
opinion as to whether it is at least as
likely as not, that: In the case of an
acquired psychiatric disorder, the
disability began or was permanently
worsened during service; or in the case of
a personality disorder, was the result of
a superimposed injury or disease.
(b) Hearing Loss (Audiologic) Examination:
A complete history of acoustic
trauma/noise exposure and perceived
hearing loss symptoms in service and post-
service should be obtained from the
veteran.
Examination of hearing impairment should
be conducted without the use of hearing
aids. The examination must include a
controlled speech discrimination test
(Maryland CNC) and a pure tone audiometry
test. See 38 C.F.R. § 4.85(a). For each
ear, pure tone audiometric thresholds, in
decibels, should be recorded for each of
the frequencies of 1,000, 2,000, 3,000 and
4,000 hertz, as well as controlled speech
discrimination testing (Maryland CNC)
(reported in percentages of
discrimination).
The hearing loss examination report must
contain an opinion concerning the etiology
of any present hearing loss, to include
whether it is at least as likely as not
that any currently diagnosed hearing loss
was caused by military service, or whether
such an etiology or relationship is
unlikely.
(c). Rash (Dermatology) Examination: The
examiner should obtain from the veteran a
complete history of claimed in-service
skin symptoms and purported etiologic
agents; and post-service symptoms.
After reviewing the available medical
records and examining the appellant, the
examiner should render a diagnosis for any
skin disorder found referable to the
claimed rash of the groin area. For any
such chronic skin disability diagnosed,
the examiner should provide a medical
opinion as to whether it is at least as
likely as not that the skin disorder
claimed as rash of the groin area began or
was permanently worsened during service.
3. The RO must ensure that all
instructions ordered here are undertaken.
If not, take corrective action. See
Stegall v. West, 11 Vet. App. 268 (1998).
Also the RO should conduct any additional
development deemed needed, specifically
including any such development consistent
with mandated instructions of the Joint
Motion granted by the Court in September
2008.
4. Thereafter, the RO should readjudicate
the claims on appeal, to include
compliance with instructions and
requirements of the Joint Motion granted
by the Court in September 2008. Such
compliance includes but is not limited to
the following:
(a) considering/addressing the
credibility of lay statements and
testimony of the appellant and his
spouse in support of his claim
regarding symptomatology in service and
since then; and
(b) discussing applicability of
38 U.S.C.A. § 1154(b) as it may apply,
with respect to the sufficiency of lay
statements to establish the in-service
incurrence of an injury or disease.
If a determination remains unfavorable to
the appellant, then furnish the veteran
and his representative a supplemental
statement of the case and afford the
applicable time period in which to
respond. Thereafter, if in order, return
the case to the Board for further
appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
The veteran is advised that at least in part the purpose of
the examinations requested in this remand is to obtain
information or evidence (or both) which may be dispositive of
the appeal. Therefore, the veteran is hereby placed on
notice that failure to cooperate by attending the requested
VA examination could result in an unfavorable decision. See
38 C.F.R. § 3.655.
(CONTINUED ON NEXT PAGE)
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).